News & analysis of the United States Court of Appeals for the Third Circuit, by Matthew Stiegler

Two especially interesting new opinions

Today a divided Third Circuit panel ruled against a woman who brought a consumer class-action suit against a baby-powder maker. The plaintiff alleged that perineal use of the baby powder can lead to increased risk of ovarian cancer. Her legal theory was that she suffered an economic injury by purchasing a product that was unsafe, even if it was only unsafe to other consumers. The majority held that her allegations were legally insufficient: “buyer’s remorse, without more, is not a cognizable injury under Article III.”

Judge Fuentes dissented, acknowledging that the majority’s conclusion makes perfect sense in the abstract but arguing that it failed to recognize that a product’s overall safety often is a key to consumers’ decisions about whether to buy it. Many of us would be less likely to buy a product marketed as safe that gives lots of other people cancer, and companies presumably know that. So denying economic recovery here allows companies to profit from hiding the danger, by preventing recovery by the consumers who spent their money on a product they would never have bought had they known.

Joining Smith was Chagares, with Fuentes dissenting. Both opinions are outstanding. Arguing counsel were Timothy Blood of California for the consumer and Matthew Powers of O’Melveny & Myers for the baby-powder maker.

A Cameroonian man in the U.S. on an expiring student visa entered into a sham marriage with a U.S. citizen almost three decades ago. He was discovered and pled guilty to making a false statement about being married, but the government didn’t try to deport him at the time. So he moved on with his life, married a citizen over 20 years ago, and had three children, all U.S. citizens. In 2003, the government in its infinite wisdom started trying to deport him for marriage fraud and a crime involving moral turpitude, namely the marriage-fraud false-statement conviction. The man applied for a fraud waiver under 8 USC § 1227(a)(1)(H).

Today, the Third Circuit denied the man’s petition for review, holding that the fraud waiver did not apply to removal based on the moral-turpitude conviction. By its terms, the fraud waiver applies to “grounds of admissibility directly resulting from such fraud.” The gist seems to be that, while the conviction here seems to be “directly resulting,” it wasn’t a ground “of admissibility” because the crime occurred after his admission. Even though the court admitted that its interpretation rendered part of the statute surplussage, and admitted that the man’s argument on this point was “cogent,” it still found the statute’s meaning clear enough that the rule of lenity did not apply, based on evidence including the “technical meaning” of the word “paragraph” as opposed to sections, subsections, subparagraphs, clauses, and subclauses, in light of authorities like the House Legislative Counsel’s Manual of Drafting Style.

My respectful view: if I first found myself relying on some legislative counsel style guide to support my statutory interpretation, and next I were forced to admit that applying the rule against surplussage would defeat my interpretation, then, even though three other circuits have interpreted the statute the same way, I believe the rule of lenity would start sounding plausible. Plausible enough, at least, that explaining why it rejected it, to uphold the quarter-century-late deportation of a father of three, warranted more than the single sentence of reasoning the opinion gave it here.

Joining Bibas were Jordan and Scirica. Arguing counsel were Matthew Archambeault of Corpuz & Archambeault for the man and Karen Melnik for the government.